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Breaking News: PCA stays construction of Kishanganga power project?

This just in: contrary to previous reports (as previously noted on ILCurryhere), some reports that appeared today in Pakistani news-media (Associated Press of Pakistan, The Express Tribune, The Dawn) suggest that the PCA has issued an interim order restraining India from proceeding with the construction of the Kishanganga power project.

Frankly, I am thoroughly confused as the PCA website doesn’t provide a copy of the interim order, or a relevant press release. I hope things will get a little clearer in the days to come and will keep you posted on the latest. In the meanwhile, here is what the Associated Press of Pakistan reports on the PCA’s ruling:

The Court of Arbitration unanimously ruled that:
1) India shall not proceed with the construction of any permanent works on or above the Kishanganga/Neelum River bed at the Gurez site that may inhibit the restoration of the flow of the river to its natural channel;
2) Pakistan and India shall arrange for periodic joint inspections of the Dam site at Gurez in order to monitor the implementation of the Court’s Order;
Pakistan had submitted an application for interim measures to the Court of Arbitration.
In its application, Pakistan had sought:
a) A stop work Order;
b) An Order that any steps India has taken or may take in respect of the KHEP (Kishanganga Hydro Electric Project) are taken at its own risk without prejudice to the possibility that the Court may order that the works may not be continued, be modified or dismantled;
c) That India be Ordered to inform the Court and Pakistan of any imminent and actual developments on the Kishanganga Dam that may adversely affect the restoring of the status quo ante or that may jeopardize Pakistan’s rights and interests under the Treaty;
d) Any further relief the Court considered necessary.

Regarding Pakistan’s legal representation, the APP report notes that the Special Assistant to the Prime Minister of Pakistan on Water Resources and Agriculture along with legal experts from Pakistan and abroad “prepared a tremendous case“. Compare this to the description of the Special Assistant to the Prime Minister that appeared a few weeks ago in Pakistani news media labeling him as the “villain of the piece“:

The villain of the piece appears to be the special assistant to the prime minister, Kamala Majidullah, who has been leading the legal team pleading our case. The competence of Majidullah for this task has been questioned in the past by experts and researchers who have had something to say about the environmental impact of the Kishanganga dam on our own Neelum Valley project. The COA raised the highly pertinent point to Majidullah as to why he did not raise objections to Kishanganga when he had the opportunity to do so back in January this year – to which there was no satisfactory reply. In other words, for lack of a little fast footwork, Pakistan had missed the window of opportunity to register an objection to an Indian project that is clearly to its detriment. The COA has questioned why Pakistan failed to register objections in January but was putting it forward now.

Whatever be the truth of the matter, and the content of the PCA’s interim order, two things are clear:

(i) Considering the contradictory reports both with regard to the actual interim order and the role of the Special Assistant within the span of a month, the news media seems to be thoroughly confused and does not appear to have conducted a thorough unbiased factual check (unbiased at least with regard to the role of the Special Assistant) before publishing reports on an issue which, at the very least, is highly contentious, and quite sensitive keeping in mind the relations between India and Pakistan. Such reporting certainly does not go a long way in promoting a better, and unbiased, understanding of the issues between the two countries.

(ii) The contradictory reports serve as an example and reminder of the need for greater transparency in international arbitration. The Kishanganga arbitration is completely public (i.e. between two states, as opposed to a mixed arbitration like investor-state) and is of enormous importance to the people of the affected region, if not the entire population of both the countries and peace and security in South Asia. As such, in my opinion, there is no reason whatsoever for such opacity in the actual proceedings. Such information vacuum only provides space for irresponsible, biased, and inflammatory speculation to thrive. In such times, I think both India and Pakistan can do without that.

Update (27 September 2011): The Interim Order of September 23 is now available on the PCA website here. To settle the tug-of-war between the Pakistani and Indian media, in short, the Tribunal has issued some interim measures – “albeit not in as far-reaching a form as requested by Pakistan” – (para.136) to “avoid prejudice to the final solution” to the dispute as may be prescribed by the final award (Id.). Whereas this may help clear the fog a little, a cursory glance over the 50-page-Order reveals that there are many other interesting points and issues. A summary of the Interim Order shall follow shortly. Thank you Parties (and the PCA) for publishing the Order!

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header image: shashank kumar / the 'curry' idea: meghana sharafudeen

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